United States v. Longoria, Ricardo ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 16, 2006
Decided August 17, 2006
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-3095
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 03-CR-87-7
RICARDO LONGORIA,
Defendant-Appellant. James B. Zagel,
Judge.
ORDER
Ricardo Longoria was one of several persons who sold phencyclidine (“PCP”)
on the street under his son’s direction from 1999 until late 2001. He pleaded guilty
to conspiracy to possess and distribute more than a kilogram of the drug. See 21
U.S.C. §§ 846, 841(a)(1). The district court first applied the “safety valve,” see
U.S.S.G. §§ 5C1.2, 2D1.1(b)(7), to avoid the otherwise-applicable, 10-year
mandatory minimum term of imprisonment, see 21 U.S.C. § 841(b)(1)(A)(iv); 18
U.S.C. § 3553(f). The court then calculated a guidelines imprisonment range of 46
to 57 months, but sentenced Longoria to just 30 months based on a psychologist’s
determination that he suffered from diminished capacity that contributed
substantially to his commission of the offense. See U.S.S.G. § 5K2.13. The court
also imposed 120 months of supervised release, twice the recommended term. See
No. 05-3095 Page 2
21 U.S.C. § 841(b)(1)(A); U.S.S.G. § 5D1.2(a), cmt. n.2. Longoria filed a notice of
appeal, but his appointed counsel moves to withdraw, stating that he cannot
discover a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738(1967). We invited Longoria to respond to his counsel’s motion, see Cir. R. 51(b),
and he has done so. Thus, our review is limited to the potential issues identified in
counsel’s facially adequate brief and in Longoria’s response. See United States v.
Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel first considers whether Longoria might argue that his guilty plea
was not knowing and voluntary because the district court failed to inform him that
at trial he could present evidence in his own defense, and that, after serving his
term in prison, he will be subject to reimprisonment if he violates the conditions of
his supervised release. Counsel states that Longoria has informed him that he
wishes to have his plea set aside; therefore, it was appropriate for counsel to
evaluate this potential issue. See United States v. Knox, 287 F.3d 667, 670-71 (7th
Cir. 2002). Because Longoria did not move to withdraw his plea in the district
court, our review would be for plain error. See United States v. Blalock, 321 F.3d
686, 688 (7th Cir. 2003); Schuh, 289 F.3d at 974.
We agree with counsel that a challenge to the voluntariness of Longoria’s
plea based on the asserted omissions would be frivolous. Rule 11 of the Federal
Rules of Criminal Procedure does require that a defendant be informed of his right
to present evidence at trial, see Fed. R. Crim. P. 11(b)(1)(E), and of the possibility of
reimprisonment for violating a condition of supervised release, see United States v.
Maeder, 326 F.3d 892, 893 (7th Cir. 2003) (per curiam). But the rule is satisfied
with substantial compliance, see Fed. R. Crim. P. 11(h); United States v. Dominguez
Benitez, 542 U.S. 74, 80 (2004); Schuh, 289 F.3d at 975, and to establish plain error,
the defendant must show “a reasonable probability that, but for the [district court’s]
error, he would not have entered the plea,” Dominguez Benitez, 542 U.S. at 83.
Here, Longoria cannot reasonably argue that he was unaware of his right to present
evidence because he already had been informed of that right through the written
plea agreement, see United States v. Driver, 242 F.3d 767, 771 (7th Cir. 2001), so
the error cannot have affected his decision to plead guilty. And he cannot argue
that his decision to plead was affected by the district court’s failure to inform him
that he could be reimprisoned on violation of his supervised release, because his
total term of imprisonment, assuming that his entire term of supervised release is
converted to imprisonment, is still less than the statutory maximum penalty of life
imprisonment. See 21 U.S.C. § 841(b)(1)(A); Maeder, 326 F.3d at 893; Schuh, 289
F.3d at 974.
Counsel next contemplates whether Longoria might challenge his prison or
supervised release terms on grounds of reasonableness. Counsel concludes that
such an argument would be frivolous, and we agree. The prison term is below the
No. 05-3095 Page 3
advisory guidelines range, which is presumptively reasonable, see United States v.
Brisson, 448 F.3d 989, 992 (7th Cir. 2006); United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005), and counsel is unable to articulate any facts presented to the
district court that would have compelled an even lower term. See United States v.
George, 403 F.3d 470, 473 (7th Cir. 2005) (“It is hard to conceive of below-range
sentences that would be unreasonably high.”). As for the supervised release term,
which falls outside the advisory range, the district court considered the relevant
factors under 18 U.S.C. § 3553(a), including Longoria’s need for mental-health
treatment and supervision, see id. § 3553(a)(2)(D). The district court explained that
it wanted to have Longoria monitored until he reached the age of 65, when “there is
at least some likelihood that the more severe aspects of his psychological problems
will have resolved themselves.”
In responding to counsel’s brief, Longoria proposes to argue that his guilty
plea should be vacated on the ground that he “was not stable in mind” at the time
he was asked for his decision. We construe this as an argument that the district
court erred in finding him competent to plead. The question we must consider is
whether he might argue that he did not have a “sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding–—and whether
he has a rational as well as factual understanding of the proceedings against him.”
See Burt v. Uchtman, 422 F.3d 557, 564 (7th Cir. 2005) (citation and quotation
marks omitted); see also United States v. Jones, 87 F.3d 954, 955 (7th Cir. 1996).
We think such an argument would be frivolous because, despite Longoria’s long
history of psychiatric disturbance, there is no indication in the record that he was
not competent to plead. The district court relied on a separate competency
examination conducted by the psychologist who testified to Longoria’s diminished
capacity, on the opinions of both counsel involved in the case, and on his own
observation of Longoria during the plea colloquy, and the court was entitled to do
so. See Jones, 87 F.3d at 956. Moreover, our review of the transcript of the plea
colloquy reveals no cause for concern. The court did not order a competency
hearing, but it was not required to do so because the evidence before it failed to
raise a reasonable doubt as to Longoria’s competency. See 18 U.S.C. § 4241; Burt,
422 F.3d at 564.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the
appeal.